Will the EU’s Unitary Patent System Resolve Uncertainty?

The Unitary Patent System represents a significant change to patent applications in the European Union, promising to make filing and protections universal across member states. However, Brexit and COVID-19 have delayed the rollout and have raised questions over protections for patents. The new system is currently expected to begin its work easing the regulatory burden on innovators at the end of 2021, leaving sufficient time to resolve outstanding issues.

The Unitary Patent system is linked to the creation of the Unified Patent Court which is an international court to deal with the infringement and validity of both Unitary Patents and European patents, cutting the cost of parallel litigation and increasing legal certainty. The EU regulations establishing the Unitary Patent system (No 1257/2012 and No 1260/2012) entered into force on 20 January 2013.Their application depends from the date of entry into force of European Patent Convention (EPC). It is a multilateral treaty providing an autonomous legal system granting European patents with the promise to defend “against unfounded claims and patents” and allow for “proportionality and flexibility”. Currently, 16 member states have ratified the UPC Agreement.

When the UK voted to leave the European Union it marked a major setback for the Unitary Patent (UP) system casting doubt over the effectiveness of UPC. The UPC’s branch that was set to hear pharmaceutical and life sciences cases was to reside in London. One significant concern is that the pool of judges will be limited to those from participating countries and UK judges with extensive experience with patent suits will be excluded. Another setback, the Unitary Patent System also does not provide provisions for Supplemental Protection Certificates that make up for lost time while a patent was under review.

The aim of the Unitary patent system is to simplify the existing system by offering businesses an alternative route to patent protection and dispute settlement. The unitary patent protection will give a benefit inventors by protecting their novel works in all participating countries through one patent application, drastically reducing expensive translation requirements in participating countries. After the patent is granted there will be no need for validation in each country.

The unitary patent is designed to lower the regulatory burdens affecting IP-intensive industries. It reduces unnecessary compliance costs associated with current regulations and promotes innovation, which is a driving force for economic success.Yet questions about how the UP system will adjust to an EU without the UK  and allow a patent term adjustment period to ensure adequate protection in the market need to be resolved sufficiently before the new system begins.

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